Personal property located upon premises occupied by a tenant shall, unless exempted by article four of this act, be subject to distress for any rent reserved and due. Such distress may be made by the landlord or by his agent duly authorized thereto in writing. Such distress may be made on any day, except Sunday, between the hours of seven ante meridian and seven post meridian and not at any other time, except where the tenant through his act prevents the execution of the warrant during such hours.

Notice in writing of such distress, stating the cause of such taking, specifying the date of levy and the personal property distrained sufficiently to inform the tenant or owner what personal property is distrained and the amount of rent in arrears, shall be given, within five days after making the distress, to the tenant and any other owner known to the landlord, personally, or by mailing the same to the tenant or any other owner at the premises, or by posting the same conspicuously on the premises charged with the rent.

A landlord or such agent may also, in the manner above provided, distrain personal property located on the premises but only that belonging to the tenant, for arrears of rent due on any lease which has ended and terminated, if such distress is made during the continuance of the landlord's title or interest in the property."

The tenant is given five days within which he may bring an action of replevin for the goods (§ 250.306), and also may bring an action to compel the landlord to set-off any account which the tenant may have against such landlord. In this latter action, the Court may determine the amount of rent in arrears and the amount of the set-off, if any, and enter judgment in favor of the proper party (§ 250.307), with the option in the landlord if he prevails to execute on such judgment or proceed with the distress.

The Act further provides in § 250.307:

". . . If the landlord shall sell more personal property than necessary to satisfy such judgment and costs and fail to pay the overplus to the tenant, he shall be liable in trespass to double the amount of the sum so detained, together with the costs of suit. If the landlord shall proceed to sell any personal property after notice of any such proceeding to defalcate and before judgment in his favor thereon, he shall be liable in trespass to double the amount by which the sum realized from such sale exceeds the sum to which he shall be found to be entitled by the final judgment in the defalcation proceeding, together with the costs of suit in the defalcation proceeding, if such judgment be in his favor."

If the owner of the personal property fails to replevy within five days after the distress and notice thereof, appraisement must be made of the personal property distrained upon (§ 250.308), after which the Sheriff or Constable shall fix a date, time and place for sale, giving at least six days public notice in writing by hand bills. On that date and time, the selling officer must publicly sell the property and apply the proceeds of the sale in accordance with the fixed statutory priority relating to payment of any wages due by the tenant, payment of the charges and costs of making the distress, appraisement and sale, and finally, the satisfaction distrained, with any overplus then going for the use of the owner (§ 250.309).

Time and time again the Supreme Court of the United States has dealt with the question of what constitutes "the right to be heard" [ Schroeder v. New York, 371 U.S. 208, 83 S. Ct. 279, 9 L. Ed. 2d 255 (1962)] within the meaning of procedural due process. ( Mullane v. Central Hanover B. & T. Co., supra). Thus, in Sniadach, supra, referring to Mullane, supra, Mr. Justice Douglas, speaking for seven members of the Court, stated (395 U.S. at 339, 89 S. Ct. at 1822, (23 L. Ed. 2d at 352-353):

". . . In the latter case we said that the right to be heard 'has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce, or contest.. . ."

In the context of this case, the question is whether the seizure of property without a chance to be heard violates this procedural due process? While there is available to the tenant the Trespass Action, the Replevin Action, and the Action for Defalcation, just as in Sniadach, supra, the tenant here is deprived of the unfettered use of property during the interim between the Distraint and the outcome of any of these actions. In many instances these actions themselves involve court costs and collection fees which make the entire process a taking of one's property where there is the need of the less affluent for the protection provided by the Constitution. Cf. Coe v. Armour Fertilizer Works, 237 U.S. 413, 35 S. Ct. 625, 59 L. Ed. 1027 (1915) (holding unconstitutional a Florida statute which permitted, after a return of nulla bona on an execution against a corporation, issuance of an execution against a stockholder for the amount of the unpaid subscription to the stock he holds, without prior notice to him or other preliminary steps).

There is sufficient State involvement in the levy and the sale because a State official performed the sale, e.g., Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961). Here, the public official has power to act only because he is an official, and thus performs "under color of law" as required by 42 U.S.C. § 1983. Mortgage Building & Loan Ass'n. v. J. B. Van Sciver & Co., 304 Pa. 408, 416, 155 A. 920 (1931).

The United States Supreme Court since Sniadach, supra, has rendered a series of decisions striking prejudgment remedies which fail to provide prior notice and an opportunity for a hearing to determine the validity of the creditor's claim. Thus, in Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), Welfare Authorities adopted procedures whereby the recipient of Welfare, after informal discussion with the caseworker, was given at least seven days' notice of proposed termination of payments with the right to submit a written statement. Procedural due process was held to require evidentiary hearings before termination and a post-termination hearing did not meet the requirements. In Bell v. Burson, 402 U.S. 535, 91 S. Ct. 1586, 29 L. Ed. 2d 90 (1971), the Court struck down the Georgia motor vehicle safety responsibility statute providing for suspension of motor vehicle registration and driver's license, if an uninsured motorist was involved in an accident and failed to post security for the amount of damages claimed by the aggrieved party, irrespective of fault.

We believe, in light of Fuentes v. Shevin, supra, where the Court held that (407 U.S. at p. 82, 92 S. Ct. at p. 1995) ". . . an individual be given an opportunity for a hearing before he is deprived of any significant property interest" (as applied to Pennsylvania and Florida prejudgment Replevin statutes), and of Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S. Ct. 2080, 40 L. Ed. 2d 452 (1974), making exceptions only when ". . . the seizure has been directly necessary to secure an important governmental or general public interest" (as applied by a Puerto Rican statute to the seizure of vessels engaged in drug traffic), it is sufficient here to emphasize that the landlord-tenant situation involves self interested private parties and not important governmental concerns. Cf. Ewing v. Mytinger & Casselberry, 339 U.S. 594, 70 S. Ct. 870, 94 L. Ed. 1088 (1950) (a statute authorized seizure of misbranded drugs); Coffin Bros. & Co. v. Bennett, 277 U.S. 29, 48 S. Ct. 422, 72 L. Ed. 768 (1926) ( bank failure followed by execution on holders of bank stock in order to pay depositors); United States v. Pfitsch, 256 U.S. 547, 41 S. Ct. 569, 65 L. Ed. 1084 (1921) (requisition of a radial drill to aid in the war effort); North American Cold Storage Co. v. Chicago, 211 U.S. 306, 29 S. Ct. 101, 53 L. Ed. 195 (1908) (seizure and destruction of food in cold storage when allegedly unfit for human consumption).

"The Georgia garnishment statute has none of the saving characteristics of the Louisiana statute. The writ of garnishment is issuable on the affidavit of the creditor or his attorney, and the latter need not have personal knowledge of the facts. . . . The affidavit, like the one filed in this case, need contain only conclusory allegations. The writ is issuable, as this one was, by the court clerk, without participation by a judge."

We thus hold that in the instant case and in accord with the great weight of authority,
*fn6"
that The Act here involved is violative of Due Process requirements and the Plaintiffs' suit, founded on Section 1983, is solidly supported by the law.

Finding as we do, it is not necessary to, nor do we, indicate any position on the Plaintiffs' contention that Article III also provides for unreasonable search and seizure by its distraint procedures when no intervention of a judicial officer is provided before entry may be made.

The foregoing shall constitute the Findings of Fact and Conclusions of Law as provided for in Rule 52(a) of the Federal Rules of Civil Procedure, and an appropriate Order will be entered granting the Plaintiffs' Motion for Summary Judgment, but denying Defendants' Cross-Motion for Summary Judgment in accordance with the foregoing Opinion.

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